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11 January 1971, BGHZ 55, 176

Bundesgerichtshof (Eight Civil Senate) 11 January 1971, BGHZ 55, 176

A thief stole two young bulls from the plaintiff, a farmer, and sold them to the bona fide defendant for DM 1,701. The defendant processed the animals in his meat product factory. Both of the previous court instances allowed the plaintiff’s action that the defendant should pay him compensation for value to the amount of DM 1,701. The defendant’s appeal, while admitted, was without success.


1. The defendant could not acquire title in the animals from the thief in accordance with § 935 I BGB. The plaintiff therefore remained owner of the animals when the defendant took possession of them. It was only after the animals had been slaughtered and when the meat was processed in the defendant’s factory that the defendant acquired title in accordance with § 950 BGB. This is not disputed between the parties.

The plaintiff therefore lost property in the animals “as a consequence of the provision” of § 950 BGB. According to § 951 I 1 BGB, he can therefore require “compensation in money in accordance with the provisions on the return of an unjustified enrichment”. It has been well settled by the courts (BGHZ 17, 236; BGHZ 35, 356, 359s; BGHZ 40, 272, 276) that this reference to the provisions on unjustified enrichment not only relates to the measure, but also to the grounds of liability for unjustified enrichment (so-called Rechtsgrundverweisung, reference to the grounds of a claim). Therefore, the plaintiff can claim against the defendant under this provision only if the general requirements for a claim in unjustified enrichment are met, in particular if the defendant acquired property in the meat without legal cause vis-à-vis the plaintiff. This is presently the case.

2. In particular, the contract between the defendant and the thief cannot serve as a justifying cause, i.e. as a ground which could justify that the defendant should be allowed to keep the property, which he acquired through § 950 BGB, without paying compensation to the plaintiff. §§ 932 et seq. BGB provide a final solution for the conflict of interests which arises when an unauthorized person disposes of somebody else’s property to a third party. Such a third party, if it is not mala fide, is protected if the owner did not involuntarily lose possession in the chattels. In this situation, the third party acquires title under §§ 932ss BGB and may keep the property without having to compensate the previous owner. In this situation, the contract between the unauthorized person and the third party is the cause which justifies this shift of wealth. However, in all other cases – including the present case, where the owner involuntarily lost possession in the chattels – the law solves this conflict of interest by favouring the owner. He keeps the property and therefore the claim for surrender under § 985 against the third party as possessor. If this third party later becomes owner as a consequence of §§ 946-948, 950 BGB, such acquisition of title is not justified by the previous contract for acquisition which the unauthorized party entered into with the third party. The third party’s acquisition of title is not based on this contractual disposition. On the contrary, under § 935 BGB this contractual disposition is without any effect, and the third party acquires property only under §§ 946 et seq. BGB. However, these provisions do not in themselves contain a justifying cause for this shift of wealth, as can be taken from § 951 I 1 BGB.

3. The claim under § 951 I 1 BGB is not excluded by the specific regulations in §§ 987-993 BGB (cf. § 993 I 2nd alt. BGB). It is true that the plaintiff remained owner and the defendant unauthorized possessor of the animals until the moment when they were processed by the defendant. As a consequence of the processing by the defendant, the latter was no longer in a position to surrender the animals to the plaintiff. The defendant  is liable  in damages for such impossibility only under the requirements set out in §§ 989, 990 BGB (action pending, mala fide), which, however, have not been met in this case, as has not been disputed. However, this does not stand in the way of a claim under § 951 I 1 BGB, because this is not a claim for damages, but a claim for restitution.

This Court has repeatedly ruled that other restitutionary claims are not excluded by the specific regulations in §§ 987-993. In BGHZ 14, 7 et seq., a previous owner was allowed a claim for restitution in a case where a bona fide possessor used up the goods (in this case: fuel) for his own purpose and thereby saved expenses. Courts have also constantly ruled that a previous owner can claim restitution in the case where a possessor sells property which is not his own and inb this way acquires the value of this property. Under § 816 I 1, the possessor is bound to give up what he acquired by way of the disposition (reference omitted). The same also applies to the disposition of chattels in which the owner involuntarily had lost possession, once the owner ratifies the disposition, in particular when he claims against the person who made the unauthorized disposition under § 816 I 1 BGB. In none of these cases is the previous owner’s claim in restitution against the previous possessor barred by §§ 987-993 BGB. The reason for this is the same in all these cases. While a bona fide possessor should be proteced by §§ 987-993 BGB – within certain limits – against what appears to be unreasonable claims for damages by the owner, the same possessor should not be allowed to keep the value of the object to the extent that he has acquired this value by what objectively is a wrongful interference with the owner’s property rights. However, to this effect, all cases of Eingriffskondiktion (restitution for interference with another’s right) must be treated in the same way. In particular, this also applies to the present case, where the possessor, within the meaning of § 950 BGB, processes chattels of which the owner involuntarily lost possession and in this way strips the owner of his title in the chattels. The restitutionary claim under § 951 I 1 BGB which then arises will no more be excluded by §§ 987-993 BGB than the other aforementioned restitutionary claims (this is also the view taken by academic writing: [references omitted]).
4. As regards the measure of the restitutionary claim, the same principles must apply to this case as to restitutionary claims against the possessor for unauthorized consumption or unauthorized disposition. It has been well settled (BGHZ 9, 333; BGHZ 14, 7) that the previous possessor who faces a claim under § 812 or § 816 BGB cannot under § 818 BGB deduct from this claim the performance which he made towards a third party in order to acquire the object in question. This is because the claim for restitution replaces the previous claim for surrender of the object under § 985 BGB. The possessor could not rely on performance made to a third party as a defence against this claim for surrender. No more can the possessor do the same against a claim for restitution (BGHZ 47, 128, 130 et seq.). Rather, the possessor must rely on that third party to which he performed for claiming back his performance. The same applies to the situation governed by § 951 I 1 BGB (in the same sense already RGZ 106, 1021). It is therefore only from the thief that the defendant can claim back the DM 1,701 which he paid to that person. This payment does not amount to a defence under § 818 BGB against the plaintiff’s restitutionary claim.

©1997 Gerhard Dannemann. HTML edition © 1998 Gerhard Dannemann. This translation first appeared in The German Law of Obligations, Vol. I: The Law of Contracts and Restitution, by B.S. Markesinis, W. Lorenz and G. Dannemann, Oxford University Press 1997, as case no. 134 on pp. 786 et seq. Reproduced by permission of Oxford University Press.The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

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